12/15/2010

[Guest post by Aaron Worthing; if you have tips, please send them here.]

Now let me start by saying that in my life I have faced discrimination. It pisses me off, then, when others are subjected to it. I support fully laws like the ADA and certainly the Civil Rights Act of 1964. I even support the notion that employers and government entities should be required to provide reasonable accommodation to the religious practices of employees, as required by law.

But some applications of this principle are ridiculous. Let’s start with this example:

The menu selection at Theo Lacy [Jail] apparently didn’t please [Malcom] King, 38, when he was booked into the jail on drug charges in April.

They serve salami there. And that didn’t quite fit in with the fitness buff/gym clothes model’s lifestyle.

So King, who is also suspected of being in the country illegally from Liberia, asked for kosher meals.

That was not because of his religion, but because they were healthier – and the 5-foot, 8-inch, 180-pound King wanted double portions to maintain his physique, said his attorney, Fred Thiagarajah.

Judge Derek G. Johnson signed off on the high-protein double-portion kosher meals for King.

That didn’t sit well with the Sheriff’s Department – which pays for the food. Kosher meals are more expensive than the regular jail fare – and are reserved for those with a religious need.

The Sheriff’s Department interviewed King about his religious leanings in May. When asked what his religion was, he answered “Healthism.”

“He’s healthy so he said health and added an ‘ism,’” said Thiagarajah, who acknowledged to the county and a judge and to The Watchdog that it was a farce.

You get that? This man, who was convicted of drug possession is a health nut. Hey, if you want to stay healthy, why don’t you quit the drugs?

Oh, but it gets better:

Judge Johnson pulled King’s lawyer and the prosecutor aside and said he needed a religion to put down on the order to make it stick, explained Thiagarajah.

“I said Festivus,” said Thiagarajah. The order was granted – three non-salami meals a day.

Now a less risible case comes from the Department of Justice yesterday, which announced that it filed suit against the Berkeley (Illinois) School District for religious discrimination against a Muslim woman. You can read the complaint here, via Volokh.

You see Safoorah Khan asked to take off time to perform the Hajj, a once-in-a-lifetime trek to Mecca required by her faith. So from the complaint:

By letter dated August 19,2008 and addressed to Dr. Joseph Palermo (“Dr. Palermo”), then Superintendent of Berkeley School District, Ms. Khan requested an unpaid leave of absence from December 1, 2008 to December 19, 2008 to perform Hajj, a pilgrimage required by her religion, Islam.

The school refused and she quit. And now the DOJ is suing, asserting that this is discrimination, on her behalf.

Now if you happened to go to the school’s website, you can see the school’s calendar that year in .pdf form. And what do you learn? You learn that if she took off those days that would have been out through the entire month of December. You know, when things like final exams occur.

And bear in mind, it’s only this way that particular year. As noted by Wikipedia:

Because the Islamic calendar is a lunar calendar, eleven days shorter than the Gregorian calendar used in the Western world, the Gregorian date of the Hajj changes from year to year.

So literally if she waited one year, she could have presumably returned from the trip on December 8, and been present for final exams. If she waited two years, she could have returned before the end of November, a much more reasonable request.

So why couldn’t she just wait two years? The closest she comes to giving an answer in her complaint is this:

By letter dated October 15,2008, Ms. Khan notified Defendant Board of Education that, based on her religious beliefs, she could not justify delaying performing Hajj[.]

But why the hell not? I am aware of no doctrine in Islam that tells you when to do it, only that you must do it once in your life.

Further, you learn something else from that Wikipedia article:

The pilgrimage occurs from the 8th to 12th day of Dhu al-Hijjah, the 12th and last month of the Islamic calendar.

So the actual Hajj requires her to be there for five consecutive days. So why does she need a full 18 days to do this? I mean, let’s be generous to her and give her two days to deal with jet lag, coming and going—why can’t she just get it all done in nine days?

The answer, one suspects, is that she will either see relatives and/or do a little tourism.

And lost in all of this is that these students are being deprived of their teacher at a crucial time in the semester. Where are they in her self-centered little world?

The fact is that accommodations—whether they are designed to accommodate faith or a disability—must not impose an undue burden. That’s a legal requirement. And allowing a teacher to take her time off right before exams seems self-evidently an undue burden. Certainly the school cannot say she can never take off for the Hajj. But it can say, “not during finals. Do it another year.”

Under our rules of civil procedure, there is little that can be done to prevent this from coming to trial. But this claim should not have been brought. And it has the distinct stench of global politics, of Muslim outreach, about it.

And it’s certainly hard to justify prosecuting such a dubious case after throwing the game in the slam-dunk case involving the Black Panthers.

What would that nasty Arizona sheriff provide the health nut? I think tents, pink jumpsuits and undies and bologna sammies are de rigeur there. Bring back the chain gangs to do public works if it is ok with unionized labor?

It is a pretty unreasonable accomodation to ask an employer to grant a benefit which is outside of a union contract. The EEOC has been putting forward increasingly ridiculous positions – and getting spanked for them in court – without any sign of sanity.

I know it’s the law, but the problem lies with the requirement that employers accommodate their workers’ religious practices. Once that door was opened, you’re just left arguing about what is reasonable and from whose perspective. And as we’ve seen elsewhere, once someone describes themselves as a ‘victim’, all bets are off.

Employers shouldn’t be legally required to do anything more for their workers than pay them the agreed upon pay and benefits, provide them a safe work environment and honor any other promises they voluntarily made to their employees…. employers could offer more but it shouldn’t be the business of government to dictate terms.

It should be an understood ‘sacrifice’ that teachers make that they can’t take vacations during the school year. This is just common sense. They get the summer, and other generous time off, and this is just the way it works.

Instead, we have these completely generalized rules about accommodation, instead of letting people with these special needs negotiate those out with employers.

I don’t think the school has crossed the law, however. But that’s just one judgment away from being a new law.

Of course the great irony is she can ask for time off for a trip to hajj and has the AG behind her and yet school districts now must refer to the upcoming Christmas vacation as the non-threatening Winter Break.

If religious discrimination is permitted to exist, it should be equal opportunity and non-discriminatory in it’s discrimination.

If the prison wanted to deal with this “Healthist” fellow, they could have agreed to get him all the kosher meals he wanted, and provided kosher salami sandwiches three times a day until he gave up. Sure, it would probably cost them even more than the standard kosher meals, because they’d have to special-order it, but I don’t think they’d have to do it for long. And I’m sure if Arpaio got a request for kosher meals he’d order kosher bologna sandwiches that were no more desirable than the non-kosher ones, only more expensive. In general, if they were to make the kosher meals match the non-kosher ones as closely as possible, they’d get fewer fakers.

Judge Derek G. Johnson signed off on the high-protein double-portion kosher meals for King.

How much you wanna bet that Johnson is of the left?

How much you wanna bet that the Department of Justice is…well, the current occupant of the White House appointed Eric Holder, who, in turn, influences the tone of the federal judiciary. Say no more.

And how much you wanna bet the judges in the following case are of “progressive” bent?

israelnationalnews.com:

An Austrian court has recently fined a citizen for yodeling while mowing his lawn, according to a report in The Kronen Zeitung newspaper.

The citizen, 63-year-old Helmut G., was told by the court that his yodeling offended his next-door Muslim neighbors, who accused him of trying to mock and imitate the call of the Muezzin.

Unfortunately for Helmut G., his neighbors were in the middle of a prayer when he started to yodel. The Kronen Zeitung reported that he was fined 800 Euros after judges ruled that he could have tried to offend his neighbors and ridicule their belief.

Helmut G. clarified that “It was not my intention to imitate or insult them. I simply started to yodel a few tunes because I was in such a good mood.”

^ Are liberals as idiotic and foolish as these cases indicate? Say no more.

I look at that same case and I see a lot of things that are a lot more ridiculous that what you cite. For starters, it is ridiculous that some people are entitled to special foods if they are of a government approved religeon. If some people are entitled to be served the kosher meal, then everyone should have the same entitlement. We don’t need prison officials and judges deciding whose beliefs are believable and whose are not.

Secondly, it is ridiculous for us to be paying the expenses for this guy’s incarceration merely because he uses drugs. Let him out where he can go about paying for his own meals, kosher or otherwise.

That is, if he was a citizen. However, since he is an illegal alien, it is ridiculous that he is still here. Deport his ass and let Liberia worry about whether he needs to be incarcerated and if so, whether he should be fed a kosher meal.

A reasonable Hajj trip should probably take a total of 5 days. There is no excuse for another two weeks of sightseeing in there. And note the timing, it puts her in a position to be gone from before Thanksgiving through Christmas if she fits the three weeks in carefully and takes some vacation time.

I don’t know many businesses that can fit in a 3 week absence with or without pay for anything short of a death in the family. There is no 3 week time off given for any other religious observation. So one would hope a sane court would tell here and the bloody biased Holder Justice department to get the heck out of his courtroom and sanctions them for the triviality of the suit.

When I was a resident physician at Barnes Hospital in St Louis the LDS resident physicians were able to convince the hospital administrator that Pioneer Day (7/23) was a holiday. Hospital called the Utah governor’s office to verify.

i have never taken off 3 weeks even for a death in my family. i mean fortunately no one in my immediate family ever died, but i don’t imagine that i would be that incapable of working.

But i stand by my idea of allowing 2 days for jet lag, coming and going. but that is still only 9 days, leaving us wondering how she justifies the 18 days.

This case is a dog. And personally know of much better cases that are not being taken by the DOJ, so much that this offends me.

Incidentally, while the DOJ might not help a mainstream christian facing religious discrimination, the law itself doesn’t discriminate, and should you ever face anti-christian discrimination, you have the same right to seek redress, on your own, in court.

I never understood the concept of religious accommodation for prisoners. Thou shall not steal and thou shall not murder are at the core of every religion. If they were that pious, they wouldn’t be in prison to begin with. I suppose that substituting pork products for non pork products of comparable cost is more than sufficient accommodation but beyond that, no.

As for the woman and her haj, it’s required once in a lifetime. She can go when she retires. That Holder is suing using the power of the US government on this case ought to be enough to impeach and remove this travesty of an AG.

I’m glad we let people read their Bibles or attend services, because I think that can be incredibly helpful to people who are losing hope.

But bending over backwards for the beliefs of people who are in prison shouldn’t go too far. Their views didn’t stop them from hurting society… and it’s rude to then demand society jump through hoops for them.

In fact, if they wish to reject their food because of religion, let them show their devotion. Replace the salami sandwich is bread alone. Seriously. That is enough accommodation.

JDOW: it’s fairly rare, but i’ve been able to take three weeks off in the software business. Essentially this works by timing your time off to be *right after* a major release that you’ve been working on for months; that’s a slack time where energy ramps down and people take stock of where they are and start planning for the next release.

Doesn’t work if you’re in management – because management doesn’t have either the crunch time or the slack time – but as an engineer, it can be done without serious problem.

Moreover, in the valley, it’s pretty common, because people want to do things like go to India to visit family, etc, and at the point where you’re undertaking a two-day plane flight, you want to stay there as long as possible.

aphrael if going on a haj were an annual or frequent requirement of the Muslim faith then granting this teacher this accommodation with her making up the excess time off and if planned and noticed to her employer well in advance could be a reasonable accommodation. However since the haj is but a once in a lifetime obligation there is no reason the school board need accommodate her now. She can always go when she is retired.

I mean: ok, sure, exceptions for deaths in the family and illness, sure.

Comment by aphrael

Of course! Or just plain old getting sick.

But if you intended to skip that much of your first year teaching, you should have found a different line of work.

I’m sure, if you tried, you could work this out to where you don’t fail at your job of helping students, while getting a week to take a Hajj. It might take a few years, but that’s OK. The Quran is actually well aware of this issue and also permits people to only go if they are able.

Cubanbob: or, alternatively, if the date were fixed, it would seem reasonable to ask that some year the accomodation be granted (although certianly a not this year bjection would seem fair game).

I have more sympathy for the prisoner with the kosher diet, because even if you accept that he’s sinned by committing the crime, eating the non-kosher or non-halal diet requires sinning again, every day, for as long as she’s in prison. The state should be willing to accomodate requests to not be forced to do that.

well, i am stepping back into this conversation without having followed all the ins and outs.

But yeah, i think a school can’t tell a person they can never go on a hajj, or have to wait until they retire. but like i said in the post, why not wait 2 years and the request becomes much, much more reasonable? if i was advising the DOJ, I would say, “we have to explain why she couldn’t wait.”

Of course then I would also say, “and wtf were you thinking dismissing the black panthers case?!” but i digress.

as for the kosher issue, i think the deciding issue is whether it is based on a genuine faith. This healthism and festevus crap doesn’t cut it. so to be percisely, its not that the accommodation is really unreasonable, so much as it is unwarranted because he doesn’t have a religious belief or handicap that justifies it. so i guess i was technically inaccurate but in a trivial way.

I don’t THINK you disagree with any of that.

Also i saw a few people in the thread say that we should never have religious exceptions to any law. but here’s the thing. we do, all the time. like you aren’t supposed to drink before you are 21… unless its during a catholic mass. michael mcconnell wrote an excellent article on religious accommodation, and one point he made was this. in america, christian faith will always be accommodated, but not so much so-called “exotic” religions. So wine for underage children. but no peyote for anyone. and on one hand, i don’t want to make peyote legal. but on the other, i doubt that peyote would be illegal if christians used it in their faith. and if that is the case (and i don’t know it is the case), then as a matter of christian principles, as much as constitutinal law, we have to let people use peyote. That is, if we would bend the rule for ourselves…

What the hell good is it to be a libtard, if you can’t be rude as all f*** ?

I mean, REALLY!!

Come on — the right to be one completely self-centered, rude, and utterly inconsiderate d***head — while being smugly condescending and superior about it — is exactly what being a libtard is ALL ABOUT.

================================================================================Actually, there’s a reasonable straightforward way to test this.

Put the exact same food as everyone else gets in front of them for thirty days. Freely advise them of which parts do not meet their purported religious proscriptions. They must sit there, as long as others do, with the food in front of them.

If, during that time, they don’t eat any of the violating foods (the can clearly eat any of the foods which aren’t at issue), then they are clearly serious about their religion, and I don’t have any problem making some “reasonable” accommodation…

If they can go substantially hungry — even fast — for thirty days, then they are serious, and I’ll respect that. Otherwise, they can osculate my posterior.
================================================================================

we do, all the time. like you aren’t supposed to drink before you are 21… unless its during a catholic mass

Aaron, sorry, I beg to differ. A casual consideration of what you say sounds reasonable, but on deeper consideration, it’s not, really.

The proscription about wine and mass is hardly a violation of the spirit and intention of the ‘no-drinking until you’re 18 sorry, “21”‘ laws.

The general presumption is that, being underage, you won’t drink responsibly, and will attempt to drink to excess. That, combined with being “underage” makes for a case of diminished capacity, hence a restriction on your ability to make some decisions.

The history of “underaged” drinking is filled with cases of both drunk driving by teens as well as the fact that, even without it, there is a serious issue with binge drinking in the under-21 crowd (I believe this is far more the fruit of the ‘zero responsibility’ meme taught in schools, but that’s another argument). As a result, it’s believed justified to prevent those under a certain age from imbibing.

While I have no doubt there are choirboys in the world who have gotten drunk on mass wine, I doubt if anyone actually ALLOWED to drink at mass ever got drunk on what they were allowed to drink… no matter how old they are.

I’m not certain of the law, but I’d lay odds that there is some case law which allows parents to feed their children wine at supper, regardless of religion. The common practice, in history, is to water the wine down in relation to age and body mass. And one can certainly argue it in terms of health reasons, as well as psychological ones (the case can be made that by outlawing it, one makes it “forbidden fruit” and actually increases youthful abuse). It may not be that it’s been challenged/resolved vs. some more modern laws, but I’ll bet one has a basis for a case in court.

Furthermore, I’m willing to bet you that there have been Christian sects which allow for use of ganja, to say nothing of more serious drugs, which have not been allowed by the Fed’s Ubernannies.

Face it, when they won’t even let the people of a STATE decide on the legality of marijuana (even in cases where it’s medically indicated -vs- death from the lack of it), it’s not surprising that there are no religious exceptions to be found.

Although I think putting agents of the state in the position of determining whether someone’s faith is genuine is potentially dangerous. Certainly the state shouldn’t mediate doctrinal disputes, and an time there’s a doubt, the doubt should go to the person claiming faith.

I don’t THINK you disagree with any of that.

Not so far, no.

So wine for underage children. but no peyote for anyone.

Right.

I understand as a matter of policy how this can happen, but I think it’s wrong as a matter of law. (But then, too, I’m not a Christian, so I’m sensitive to pro-Christian bias in the operation of the laws.)

Although I think putting agents of the state in the position of determining whether someone’s faith is genuine is potentially dangerous.

I think I suggested a fairly reasonable definition of the concept above. Considering the number of people who undergo a fast for their Faith on many different occasions, it seems quite reasonable to expect someone serious about their religion — which is one which includes fasting as a regular activity — to be willing to fast for it.